Delhi District Court
Sh. Nain Singh Negi vs M/S. Raja Chemical Industries on 29 November, 2022
IN THE COURT OF SH. JOGINDER PRAKASH NAHAR
PRESIDING OFFICER, LABOUR COURT-IX
ROUSE AVENUE COURTS COMPLEX, NEW DELHI
LIR No. 456/16 CNR No. DLCT13-000502-2015
Sh. Nain Singh Negi
S/o Sher Singh
R/o H.No. 5/42, Khichripur
Delhi-110091 ......Workman
Versus
M/s. Raja Chemical Industries
Through its Proprietor
Sh. Jai Prakash Gupta
Plot No. 403, FIE Patparganj
Delhi-110092 ......Management
Date of Institution : 12.02.2015
Date of Award reserved on : 18.11.2022
Date of Award : 29.11.2022
REFERENCE U/SEC. 10(1) (C) AND 12(5) OF INDUSTRIAL
DISPUTE ACT, 1947 R/W GOVT. OF NCT OF DELHI,
LABOUR DEPARTMENT NOTIFICATION NO.
F.1/31/616/Estt./2008/7458 DATED 3rd MARCH 2009
AWAR D
LIR No. 456/16
Nain Singh Negi v. M/s. Raja Chemical Industries Page 1 of 20
BRIEF FACTS AND REASONS FOR DECISION :-
1. Vide this Award the present reference petition referred by the Joint/Deputy Labour Commissioner, District East/North East, Govt. of the National Capital Territory of Delhi shall be disposed which was referred by appropriate Government/Office of Labour Commissioner arising between the parties.
2. The present statement of claim was filed by the workman submitting that workman is a 'Helper' with the management since last several years on basic salary of Rs.8,115/- per month. The management has without any valid reason transferred the workman to M/s. Raja Chemical Industries. Owners of both the industries are brothers. The workman was not trained for service at M/s. Raja Chemical Industries where he was engaged in a machine on 17.12.2013 for which he was not trained. While performing his duty his right hand got grievously injured and crushed in the machine due to which the thumb, index finger, middle finger and distil one-third of right finger was amputated. Hence he lost three fingers and thumb of his right hand. FIR no. 808/2013 u/Sec. 287/337 dated 17.12.2013 at PS Madhu Vihar had been registered. Workman is an illiterate person and he is unable to LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 2 of 20 do any other desk work. He is the only bread earner of his family. Despite repeated visits at the office of management the workman was not kept back on service. He had demanded from the management compensation for a sum of Rs.18 lakhs. Legal notice dated 20.02.2014 by speed post was also sent through his Ld. Counsel. The termination of workman is illegal, without issuance of any notice or chargesheet. He was permanent employee. Management did not prepare any seniority list. Hence workman has prayed for reinstatement, compensation of Rs.18 lakhs for the grievous injury, Rs.50,000/- for medical expenses, back wages for a sum of Rs.1,21,725/- with bonus and all consequential facilities. Compensation for Rs.2 lakhs is prayed for harassment and mental agony.
3. Corrigendum was issued in the matter dated 31.08.2018 where correct address of management is recorded as M/s. Raja Chemical Industries, Plot no. 403, FIE, Patparganj, Delhi-110092.
4. There is only one management namely M/s. Raja Chemical Industries.
5. In the written statement/reply filed by the management it LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 3 of 20 is submitted that the claim is not filed by the workman against Raja Chemical Industries. The workman had joined only on 01.01.2013 as casual labour. He was covered under ESIC vide insurance no. 1013726731 dated 14.02.2013. He was trained to operate machine and due to his own negligence he sustained injuries. On 17.12.2013 he was rushed to hospital and provided with proper care. After discharge from hospital he was offered back to join service but the workman did not join within 03 days of receipt of legal notice from the management dated 03.07.2014. He must have taken benefit under ESIC. The salary certificate filed by the workman is for the month of December 2013. Mr. Jay Gupta was not proprietor of Raja Kheni. Workman himself has joined Raja Chemical Industries on 01.01.2013 and the accident had taken place after 11 months on 17.12.2013 and in between no protest was made by the workman. The workman was a casual worker and his work was intermittent in nature. Rest of the claim and averments of the workman are denied and it is submitted that claim of the workman may be dismissed.
6. On the pleadings of the parties and averments made following issues are framed in the reference on 31.07.2017:
LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 4 of 201. Whether the services of workman were terminated by management illegally or unjustifiably? OPW
2. Relief.
7. The sole witness of the workman is WW-1 who is workman himself and workman relied upon the documents Ex.WW1/A to Ex.WW1/E. On separate statement of workman WE was closed on 04.10.2021. The management has examined sole witness MW-1/Sh. Sanjeev Kumar Jha. ME was closed by order of this Court vide order dated 03.03.2022.
8. Final arguments are heard and record perused.
9. AR for workman has relied on following citations:
(i) G.T. Lad & Ors. v. Chemical and Fibres of India Ltd. AIR1979 SC 582
(ii) Jayantibhai Raojibhai Patel v. Municipal Council, Narkhed & Ors. SLP (C) 8112/19
(iii) Armed Forces Ex Officers Multi Serivces Cooperative Society Ltd. v. Rashtriya Mazdoor Sangh (INTUC) in Civil Appeal No. 2393/2022 dated 11.08.2022
10. The issue-wise findings are as follows:-
LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 5 of 20 11. ISSUE NO. 11. Whether the services of workman were terminated by management illegally or unjustifiably? OPW
11.1 The workman has pleaded that he was initially engaged by M/s. Raja Kheni and later without his consent he was transferred to M/s. Raja Chemicals. However the M/s. Raja Kheni is not party in this matter nor the workman has moved to Competent Authority to implead M/s. Raja Kheni as a party. Hence the reference is not received regarding such illegal transfer of the workman. It is settled law that the present Court is bound by the sent reference. Hence the dispute between workman and M/s. Raja Chemical Industries has to be decided in this matter and not the service if any rendered by the workman with M/s. Raja Kheni. It is pleaded by the workman that he was transferred to M/s. Raja Chemical Industries. Management at para no. 2 of preliminary objection had pleaded that the workman had joined M/s. Raja Chemical Industry on 01.01.2013. The workman has not pleaded nor bought in evidence that when he joined M/s. Raja Chemical Industry. However the workman in cross-examination of MW-1 has not disputed his joining with M/s. Raja Chemical Industry on 01.01.2013. Hence the joining of the workman with Raja Chemical Industries has LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 6 of 20 stood proved w.e.f. 01.01.2013. The burden is on the workman if he had worked with Raja Kheni or with M/s. Raja Chemical Industries. However workman has not produced any evidence on record to show that he was employee of M/s. Raja Kheni. The injury to the workman had occurred on 17.12.2013. The WW1 has deposed in cross-examination that he worked with the management from 01.01.2013 till December 2013 i.e. 17.12.2013 when the accident had occurred. This fact remains uncontroverted and stood proved on record. Hence it is proved that the workman has worked 240 days in a year with the management preceding the last date of his alleged illegal termination.
11.2 The WW1 has deposed that after the accident dated 17.12.2013 he suffered permanent disability. When he visited the management for work then management had told him that he is not fit for work now therefore management cannot keep him on work. Thereafter he sent a legal notice Ex.WW1/D dated 20.02.2014 on the management. Postal receipt of which is Ex.WW1/E. Receipt of legal notice was admitted by the management to which management had replied. It is deposed by the MW1 that the management had offered work to the workman at the post of Helper after the incident/accident dated 17.12.2013. However workman LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 7 of 20 failed to join despite repeated requests. Workman was called upon to join the duty within 03 days of receipt of legal notice dated 03.07.2014 Ex.WW1/X1 and despite service of which the workman did not join. WW1 has deposed that he has received reply of the management dated 03.07.2014 Ex.WW1/X1. However management was not ready and willing to employ him as Helper even today. It is deposed by MW1 that the workman had worked with the management till his hand was amputated. It is deposed by MW1 that no letter was issued to the workman asking him to report on duty. No show cause notice or chargesheet was issued to workman. Hence management has failed to prove that it had asked the workman to join back the duty. Though management has taken the plea of abandonment. However no show cause notice was issued to the workman nor any chargesheet was issued to him for not joining the duty. The first legal notice was issued only by the workman vide Ex.WW1/D dated 20.02.2014. Management has alleged replied to this notice vide Ex.WW1/X1 which was sent on 03.07.2014 about 05 months after the legal notice sent by the workman. In fact management has failed to show having taken any sincere effort to re-employ the workman after accident. Management must prove abandonment in view of citation titled G. T. Lad and Ors. vs Chemical and Fibres of India Ltd. AIR 1979 LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 8 of 20 SC 582. The relevant para is reproduced hereasunder:
9. Re.-Question No. 3: Let us now advert to the last but the most crucial question, namely, whether the action of the Company in removing the names of the appellants from its rolls during the pendency of the proceedings before the Labour Court in respect of the industrial dispute on the presumption that they had abandoned Company's service constituted an alteration in the conditions of service applicable to them immediately before the commencement of the said proceedings which prejudiciously affected them.
Although the learned Counsel appearing on behalf of the respondent has taken us through the certified standing orders as applicable to the appellants, he has not been able to point out anything therein to indicate that the company could terminate the services of the appellants on the ground of abandonment of service because of their going on strike in enforcement of their demands. Thus, their being no provision in the certified standing orders by virtue of which the Company would have terminated the services of the appellants in the aforesaid cicumstances, the impugned action on the part of the Company clearly amounted to a change in the condition of service of the appellants during the admitted pendency of the industrial dispute before the Labour Court which adversely affected them and could not be countenanced. We are fortified in this view by the aforesaid decision of this Court in Express Newspapers (P) Limited v. Michael Mark and Anr. (Supra) where repelling an identical contention to the effect that the failure of the workmen to return to work by a notified date clearly implied abandonment of their employment, it was held that the management cannot by imposing a new term of employment unilaterally convert the absence of work into abandonment of employment. It was further held in that decision that if the strike was in fact illegal, the management could take disciplinary action against the employees under the standing orders and dismiss them. If that were done, the strikers would not have been entitled to any compensation LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 9 of 20 under standing orders but that was not what the appellants purported to do and the respondents were, therefore, entitled to relief.
11.3 Management has failed to prove the abandonment on behalf of workman. Workman was already in difficulty due to amputation of his hand. He is illiterate and must have found difficulty to get sent legal notice to the management vide Ex.WW1/D dated 20.02.2014.
12. Workman has alleged that management has not given him any training to operate on industrial machine. The case of the management is that workman was working on this machine since 01.01.2013 and the accident had occurred on 17.12.2013. According to the management workman had acquired sufficient experience on this machine having worked over it for a period of about one year. With these submissions management has admitted that the workman did not require any training. Thereby it is proved on record that no training was imparted to the workman to operate on the industrial machine. Workman was admittedly employed as Helper as deposed by WW1. This fact is not controverted to the workman in evidence. MW1 has admitted that no appointment letter was issued to the workman by the management. Hence it is LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 10 of 20 proved on record that the workman was appointed as Helper by the management. The main work of the Helper is only to assist the Machine Operator and not to operate the machine. When the workman as a Helper pleaded that no training was imparted to him then the onus has shifted on the management to prove that training was imparted to the workman to operate such machine when the workman was not employed to operate on such machine. On the face of it the workman as a 'Helper' cannot operate the machine alone himself. As per para no. 4 of Ex.WW1/1 the workman was operating the machine alone on the said date 17.12.2013 at the time of accident and suffered grievous injury. The WW1 has deposed in cross-examination that the Manager Mukesh asked him to operate machine leaving the packing work. When he refused then he was asked by the Manager either to work on the machine or leave the job. The machine was purchased by the management just one month before the amputation of his hand. The machine could be operated by three persons at a time but at the time of accident the other two workman were not present and workman alone was operating the machine. Hence, when the machine is being operated by the workman the Manager was present at the spot who did not stop the workman herein from operating the machine then it does not lie in his mouth at this stage to say that the workman had LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 11 of 20 operated the machine unauthorisedly which is contrary to his pleadings that the workman was trained operator and due to his own negligence he put his left hand in the machine and got grievous injury. The dishonest claim of the management is rejected. Hence it is found that without proper training the workman was employed by the management at the machine purchased one month back and due to such conduct of the management the workman had suffered injury on 17.12.2013. The workman has suffered injury due to wrongful act of the management to ask the untrained workman to operate such machine.
13. In view of above it is held that management has failed to prove abandonment on the part of workman. The workman has successfully proved on record that his service was illegally terminated by the management by not allowing him to join back service after recovering from accident dated 17.12.2013. It is not the case of the management that workman is not fit to work with the management. In such circumstances the workman is still employable with the management. Management cannot take benefit of his own wrong by taking the plea of No work No pay. The relevant citation titled Armed Forces Ex Officers Multi Services Cooperative Society Ltd. v. Rashtriya Mazdoor Sangh (INTUC) LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 12 of 20 in Civil Appeal No. 2393/2022 dated 11.08.2022 at para no. 19 is reproduced hereasunder:
19. In Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (supra), this Court held:
"38.3 ......If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service........"
(emphasis added) With respect to the obligation of the Appellant, the finding of the Tribunal is simple that:
"On the contrary, in the entire evidence filed by the First Party, the First Party has not brought an iota of evidence to show that all the workers were employed elsewhere and were earning for their livelihood."
14. Further workman has relied upon the citation titled Jayantibhai Raojibhai Patel v. Municipal Council, Narkhed & Ors. SLP (C) 8112/19 which has referred to citation Deepali Gundu Surwase. The relevant para is reproduced hereasunder:
In the case titled Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and Ors., (2013) 10 SCC 324 wherein the concept of reinstatement was also discussed.
"38.1. In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.
38.2 The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the court may take into consideration the length of service LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 13 of 20 of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.
38.3 Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averment about its existence. It is always easier to prove a positive fact than to prove a negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.
38.4 The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and/or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then, it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award or full back wages.
38.5 The cases in which the competent court or tribunal finds that the employer has acted in gross violation of the LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 14 of 20 statutory provisions and/or the principles of natural justice or is guilty of victimising the employee or workman, then the court or tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc. merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The courts must always keep in view that in the cases of wrongful/illegal termination of service, the wrongdoer is the employer and the sufferer is the employee/workman and there is no justification to give a premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.
38.6 In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalisation of litigation has taken long time ignoring that in majority of cases the parties are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-a-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of frame. Therefore, in such cases it would be prudent to adopt the course suggested in Hindustan Tin Works (P) Ltd. v. Employees".LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 15 of 20
15. The workman has not pleaded anywhere nor proved in evidence as WW1 that he was unemployed during the entire period from 17.12.2013 the date of accident till the date of this judgment. Therefore in absence of basic pleading and evidence the negative burden of the workman has not shifted on the management and therefore it is held that workman has failed to prove that he was unemployed during the period from 17.12.2013 till date in this case and therefore workman is held not entitled to back wages in this matter. Hence the claim of the workman regarding back wages is dismissed.
16. Workman has prayed for compensation for a sum of Rs.18 lakhs under Workman Compensation Act. Workman has also prayed for medical expenses for a sum of Rs.50,000/-, Rs.2 lakhs for harassment and mental agony. It is noted that in respect of medical expenses, harassment and mental agony no reference is sent and thereby the plea is dismissed. The case of the workman falls under Section 25F of Industrial Disputes Act, 1947. Thereby the case of the workman cannot go beyond the reference. The above claim of the workman for compensation for a sum of Rs.18 lakhs under Workman Compensation Act is beyond the reference and thereby same is dismissed. In the citation titled LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 16 of 20 The Management of v. Sri K. Shivaram dated 04.04.2022 in W.P. No. 17583/2017 the Hon'ble High Court of Karnataka has held as under. The relevant para is reproduced hereasunder:
16. The respondent claimed that he was entitled to claim the amount due to the injuries suffered by him during the course of employment. Therefore his claim was under the Act, 1923. In such event the claim lies before the Employee's Compensation Commissioner and not before the Labour Court.
17. The larger bench of Hon'ble Supreme Court in para 12 of the judgment in Municipal Corporation of Delhi's case referred to supra in this regard held as follows:
"12. The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then W.P.No.17583/2017 proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution. (Emphasis supplied)
18. Similarly in para No.8 of the judgment in State of U.P. and Another Vs Brijpal Singh's case raised the point whether LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 17 of 20 the Labour Court had jurisdiction to entertain and decide the claim under Section 33C(2) of the I.D Act which is not preceded by an award or settlement and considered the same. In para No.10 of the judgment it was held as follows:
10. It is well settled that the workman can proceed under Section 33C(2) only after the Tribunal has adjudicated on a complaint under Section 33A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the case of Punjab Beverages Pvt. Ltd. Vs. Suresh Chand, (1978) 2 SCC 144 held that a proceeding under Section 33C(2) is a proceeding in the nature of execution proceeding in which the Labour Court calculates the amount of money due to a workman from the employer, or, if the workman is entitled to any benefit which is capable of being computed in terms of money, proceeds to W.P. No.17583/2017 compute the benefit in terms of money. Proceeding further, this Court held that the right to the money which is sought to be calculated or to the benefit which is sought to be computed must be an existing one, that is to say, already adjudicated upon or provided for and must arise in the course of and in relation to the relationship between the industrial workman, and his employer. This Court further held as follows:
"It is not competent to the Labour Court exercising jurisdiction under Section 33C(2) to arrogate to itself the functions of an industrial tribunal and entertain a claim which is not based on an existing right but which may appropriately be made the subject matter of an industrial dispute in a reference under Section 10 of the Act."
(Emphasis supplied)
19. In para-13 of the judgment it was held that the Labour Court had no jurisdiction to adjudicate the claim made by the Workman under Section 33C (2) of the I.D Act in an undetermined claim and until such adjudication is made by the appropriate forum. The same view is LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 18 of 20 reiterated in other judgments.
20. Reading of the judgment in Punjab National Bank Ltd's case relied by the learned Counsel for the respondent shows that the application in the said case was preceded by an award. Therefore the said judgment cannot be justifiably applied to the facts of the present case.
21. In view of the specific forum provided under the Act, 1923, the Labour Court had no jurisdiction to entertain the claim petition. Though the Workman suffered certain disability, the question was due to such disability, whether there was loss of earning. Admittedly after the accident, the respondent received remuneration in the pay scale of drivers. Therefore whether he was entitled to claim compensation under the head of loss of earning or earning capacity was a matter of adjudication.
17. R E L I E F 17.1 In view of findings under issues above it is held that this case falls under the category of illegal retrenchment in violation of principle of Sec. 25F of Industrial Disputes Act, 1947 without any justification and non-compliance of principles of natural justice. Accordingly workman is held entitled and has been granted the following reliefs u/Sec. 11A of Industrial Disputes Act, 1947 among other provisions of law as under:
(i) Immediate reinstatement with management from the date of publication of this Award with;
(ii) All consequential benefits from the date of his termination LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 19 of 20 till the date of his reinstatement with management.
17.2 Reference stands answered in the aforesaid terms. A copy of Award be sent to the Competent Authority/appropriate Government i.e., Joint/Deputy Labour Commissioner, Government of NCT of Delhi of Distt./Area concerned for publication which thereafter become enforceable u/Sec. 17A of Industrial Dispute Act, 1947. Award is passed accordingly.
File be consigned to record room after due compliance. Announced in the open Court on 29.11.2022. JOGINDER Digitally signed by JOGINDER PRAKASH PRAKASH NAHAR Date: 2022.11.29 NAHAR 16:31:06 +0530 (JOGINDER PRAKASH NAHAR) PRESIDING OFFICER LABOUR COURT-IX ROUSE AVENUE COURT COMPLEX/NEW DELHI LIR No. 456/16 Nain Singh Negi v. M/s. Raja Chemical Industries Page 20 of 20